GW Law Professor Analyzes Ex-FBI Director’s Hill Testimony

Paul Schiff Berman thinks a case can be made that President Trump obstructed justice in his interactions with James Comey.

Paul Schiff Berman. (Jessica McConnell Burt/GW Today)

June 12, 2017

Former FBI Director James Comey discussed his controversial dismissal by President Donald Trump before the Senate Intelligence Committee Thursday, as part of the committee’s investigation into potential ties between the president’s campaign and Russian interference in the 2016 election. GW Today spoke to Paul Schiff Berman, Walter S. Cox Professor of Law at the George Washington University Law School, about the potential legal and political implications of Mr. Comey’s public statement and testimony.

Q: What in your opinion are the most important takeaways from the congressional hearing?

A: Assuming Mr. Comey’s testimony is credible—which most people, Democrats and Republicans alike, seem to accept—I believe his statements, taken together, establish what lawyers call a prima facie case of obstruction of justice. Obstruction of justice is contained in a variety of federal statutes, but in essence asks whether someone in authority attempted to influence the path of an ongoing investigation. It does not require that the attempt be successful.

Mr. Trump engineered two separate meetings where he and Mr. Comey would be completely alone. During the first of those meetings he asked for Mr. Comey’s personal loyalty and implicitly threatened his job. In the second of the meetings, Mr. Comey understood Mr. Trump to be directing him to change the course of his investigation of former National Security Advisor Michael Flynn. And when Mr. Comey did not alter the investigation, Mr. Trump took the extraordinary step of firing Mr. Comey. Those three events, taken together, create a strong case for obstruction of justice—though obviously one would need to investigate further to determine how a fact-finder might ultimately rule.

There’s also a strong argument that Mr. Trump’s threat to file a complaint against Mr. Comey for revealing the contemporaneous memos he took while talking to the president is itself a further obstruction of justice. It smacks of retaliation against a whistleblower, who after all is now a private citizen and free to divulge the contents of any non-classified conversation he had with the president.

Q: To what degree do you think Mr. Comey’s testimony affects the credibility of the Trump administration?

A: Separate from the issue of obstruction of justice, it was extraordinary that Mr. Comey suggested that he treated his interactions with the president as if he were dealing with someone who was not trustworthy. Given Mr. Comey’s reputation, that is pretty damning.

Q: What are the implications for the administration going forward?

A: Any action to be taken against the president is obviously a political question as much as a legal one. I do not expect any further action against Mr. Trump in Congress unless and until Republicans on Capitol Hill decide that aligning with Mr. Trump hurts them or their agenda. It will take them fearing that they are imminently going to lose control of Congress.

I think it is essential to realize that Mr. Comey’s testimony implicates two huge issues, both of which threaten the core of constitutional democracy. First, he made it crystal clear that the Russian government deliberately interfered in our election and is likely to do so again. Second, as I said earlier, he provided sufficient evidence to make out a strong case for the president obstructing an investigation into his own campaign and administration.

Either of those, taken alone, should be grounds for a constitutional crisis and a huge amount of congressional action. Taken together, it is astonishing that the Republicans in Congress are still willing to put their own partisan agenda ahead of the nation’s well-being.

It’s important to note that in the run-up to Richard Nixon’s impeachment and resignation, Republicans as well as Democrats joined together to protect the country. This strikes me as potentially a far worse threat to the integrity of our constitutional democracy, and therefore it is particularly disappointing that partisanship continues to drive events.